Is lapsing mandatory?

After looking at reg 30 of the D & A regs and 17 HB regs I'm thinking a revised decison that is advantageous to the appellant (be they 1p better off or more) means the appeal ceases.

Any ideas? Can the DM revise advantageously and use their discretion to continue with the appeal?

I agree with your analysis, but with 2 caveats.

Firstly, there is the danger of abuse of process by an LA. A couple of options in such cases are to complain to the LA (through to Ombudsman if necessary), or write directly to TAS with the appeal.

Secondly, where I find such cases and the change is genuinely tiny (or has already been looked at countless times), my general approach is to submit the appeal to TAS and note in the submissions what the LA concedes.

Regards

Cheers for that.

I have an appeal that on preparing the appeal papers the LA have applied offsetting and preared the appeal anyway.

I'm concerned that a tribunal Chair may just say that the appeal before them is invalid as the decision has since been revised. That would,however, leave the main issue of whether or not any of the amount is recoverable.

On the TAS front... I've tried that tack before (submitting the appeal direct) but have not got anywhere with it. TAS simply said that it wasn't for them to decide and returned the papers. However, I did once submit a late appeal by accident directly to TAS and that worked. ?

Unfortunately, under the primary legislation (section 9(6) of the Social Security Act 1998 and para 3(6) of schedule 7 of the CS Pensions and Social Security Act 2000)the "appeal shall lapse" (subject to exceptions). So a decision which is revised to award a higher rate of benefit forces the DM's hand. S/he is bound by primary legislation to lapse the appeal and has no discretion.

I think an interesting question is who decides that the appeal lapses (the legislation makes it an automatic and mandatory process but doesn't really say whether this is a decision for a Chair or for the LA.

Saw a recent case where the LA wrote to say the appeal had lapsed. We took the view that the decisions as revised (if in fact they had been revised) were no more advantageous to the claimant and made representations to TAS that there was no lapsing possible and the Tribunal still had jurisdiction.

In my view, in that case, the authority had sought to lapse the appeals simply in order to frustrate the claimant's right to a hearing.

I think it must be the case that a Tribunal decides whether an appeal lapses or not (or possibly a DC). However, I would be interested to hear views as to how this can be argued from the Regs.

Thats a good question. My view would be that no decision is required. The new revised decision is issued and thus the appeal just falls away. No one issues a separate decision on this, nor, I think, is one required by law. There is just no valid appeal left for anyone (DM or tribunal chair) to adjudicate on.

Hmmmm....

If there is a dispute about whether the revised decision "is more advantageous" to the claimant then someone needs to decide who is right: the LA or the claimant.

The idea of automatic lapsing just happening is how the legislation is worded but clearly if there is a dispute it can't be that automatic- there is a dispute about whether there is a valid appeal. Where that issue arises in a different way (was the appeal properly completed etc) then this goes before a DC. I can't see that you would stretch that reg (Reg 20 (7) and (8) of HB D&A Regs for HB) to cover this situation BUT maybe it could be dealt with under the general power of a DC to give directions about appeals- Reg 38 of D&A. Once a DC is persuaded there is still a valid appeal a hearing can obviously be directed).

I suppose the solution may be to simply appeal the decisions as revised. However that can add substantial delay to a case. A better way (in addition to that as an insurance measure) is to write back to TAS when informed the appeal has lapsed and state you do not accept this and go on to set out reasons why the new decision is not more advantageous to the punter. Then ask the DC to direct a hearing.

The LA could then turn up at appeal and argue that there is no jurisdiction if it wanted.

Such a case appealed to the Comms may well settle the issue....

Martin.

Martin

Yep! Where there are such disputes then I completely agree with you.

Regards
Paul

I am still waiting for a decision from an oral hearing where this issue arose (it was probably over a year ago now and stayed pending Hinchy, then B v DWP). In that case, an IS overpayment was revised during the course of an appeal to the tune of about a quid or less in the clients favour.

Neither I, nor the Tribunal, nor the PO at the time noticed or realised the implications of this. At Commissioners, the SOS rep submitted that the Tribunal had no jurisdiction to consider the revised appeal as no subsequent appeal had been made (the appeal just carried on its lengthy and convoluted process).

The Commissioner was not best pleased at this submission late in the day. I tried to argue that the provisions are in breach of Art 6, as I think they are. The SoS can delay and disrupt procedings by tinkering round the edges of large overpayments and forcing the claimant to start again. This denies the claimant a right to a substantive hearing of his case and puts too onerous a burden on him to keep the appeal going.

However, the requirement to lapse is in the Act, with exceptions in the regs only. Although I think the commissioner was sympathetic, he felt constrained by the section.

We got around it (I hope) by using one of my written submissions after the date of the revised decision as an appeal letter.

I hope that the Commissioner might make some observations on this if I ever get the decision - The numbers are CIS 4328/2003 and CIS 4320/2003 if anyone is interested. And the hearing was in August 2004.

Hearing in August 2004?
......what are they waiting for now?

B v DWP.

Which doesn't bode well for my client, because most of the arguments I made were about revision and supersession.

The new decision appeared to be an issue at the hearing.

Luckily I had discussed it with the PO and they didn't think it was a problem and that if it was they would accept the late appeal there in the tribunal room. One I'd prepared earlier.

The Chair brought the issue up, I explained what I had told the PO and that they had accepted that the appeal was against the later decision so we went ahead on that basis.

The new decision for the offsetting was included in the appeal papers was the 17th and we received the papers on the 12th the following month.

The client didn't advise of the new decision and because of xmas and the hols etc (being lazy) I wasn't aware of the new decision until a day or two before the hearing as I read only the main points.

I was arguing that the reg says "...an appeal against a decision of the relevant authority shall not lapse..." and this was the only mandatory part of the reg and therefore a DM could allow the appeal to continue at their discretion, and should do so as the appeal grounds were that the overpayment was not recoverable. There was no argument as to whether she had been overpaid, therefore the amount whether 1p or £1000 was not relevant to the appeal.

We had a case where our customer (HB claimant) appealed an OP of over £12000. When we re-considered the decision we discovered a period of underlying entitlement that hadn't been calculated and reduced the OP by the princely sum of £6.

Although the appeal lapsed, we pressed ahead with a submission to TAS anyway (the appeal had already dragged on for some time).

The chair refused to hear it as it had lapsed but did state he would accept an appeal there and then from the customer against the new decision and deal with that.

Unfortunately she wasn't there (her rep was) and no appeal could be made at that time.

Doh!!

Probably a bit late now, but in the case I referred to above, the commissioner accepted an appeal from the rep. I don't see why the rep couldn't appeal on her behalf if he had authority to rep at the appeal.

HB appeal must be signed by appellant (unlike a DWP benefit one).

However, in case described, in my view, LA could have accepted an appeal made by the rep and gone on at the hearing to say that they had waived the defect in the fact the appeal was not signed using their power to do such things under Reg 20(3) of the HB CTB (D&A) Regs 2001. The Tribunal would then have had no choice but to accept there was a valid appeal before it and get on with their job.

At my LA, where a decision is revised in the light of an appeal and is advantageous to the claimant, we send out a slip that the claimant can sign if they want to continue with the appeal. (In effect this is a fresh appeal, but uses all the letters etc already submitted by the claimant). We then include this slip in papers sent to TAS and have never had any problem having the appeal heard.

jmembery's practice seems to me to be an ideal solution to this practical problem.

Would be good if other Local Authorities could adopt it.